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Nice Letter, Lawyer Letter

Few things generate as much anger from non-lawyers as the lawyer letter. When I posted about lawyer letters the other day, following Patterico’s and Jeff Jarvis’ complaints about the APs handling of their silly quotation demands, a comment was left by my buddy Mark, the WindyPundit. I wrote that a letter was just words, and this is how Mark reacted:

Almost everything a lawyer does is just words, so that’s not exactly a comfort.

And maybe it’s not just words, maybe it’s notice of some kind—an official requirement before the next step. Is there some response I have to make to preserve my options? Did the letter start some clock running that will ring later on?

Whenever I get a letter that someone spent over $100 to write (maybe way over $100), it gets my attention. If I have to pay a lawyer to read the letter for me, it could easily cost more than all my out-of-pocket expenses for a year’s worth of blogging.

A lot depends on whether the AP tried a lighter hand first. Did they originally send a letter that starts something like “Hi, I’m Bob Smith at Associated Press, and we just noticed something about your website that caught our attention…”?

Aside from the issue I raised in response, that the idea that there should be required precursors to lawyer letter, where “nice” overtures precede the demanding ones, it struck me that there is a substantial gap in the appreciation of why letters are sent by lawyers in the first place. I want to try to clear this up.

A short time back, I was asked by a client to help with a problem he was having with a neighbor. My client was the former CEO of a major corporation. His neighbor is a professional athlete in a major sport. This is a volatile mix. While both are accustomed to getting their way, the added element of celebrity brings with it a sense of entitlement that makes the ordinary rules inapplicable.

Neighbor problems tend to be some of the ugliest around. They get very personal, and impact some very basic interests. When things started to go wrong between my client and the neighbor, he tried to do the neighborly thing and address it in a friendly manner. He was ignored, as far as he was concerned. The sports guy, on the other hand, thought my client was a pain, but he had address it and moved on. The nature of the problem was daunting, since it involved a significant encroachment, something that most people would never even consider. The sports guy decided it was no big deal to use his neighbor’s property. Entitlement.

Then it happened again. Same process followed. But now the sports guy was getting annoyed, with his neighbor “bothering” him constantly. He saw my client as being a complainer. It never dawned on the sports guy that his efforts to expand his property onto his neighbors was the root cause of the problem.

By this time, both neighbors were quite unhappy with the other, each believing that the other was unreasonable and ridiculous. There are nothing particularly tricky about the problems themselves, but communication had broken down and attitudes prevented any effort at reasonable discussion between the two. Enter the lawyer.

It was my hope to de-escalate the problems between the neighbors. They didn’t have to be best friends, but it’s best for neighbors to at least learn to live in relative peace. The alternative just makes life miserable for everyone. So rather than send the lawyer letter, making demands and threatening litigation should the sports guy not clean up his act, I decided to try to make an effort to circumvent the personality conflict by going through the sports guy’s lawyer. I had a way that the numerous problems that existed could be addressed to everyone’s benefit, but needed to have someone to speak with who would be detached from the personal animosity and understand the implications of the solution.

So, in lieu of a lawyer letter, I sent word through an intermediary that there was a resolution that would benefit everyone, and that a discussion between me and the sports guy’s attorney would be the best way to make life better for both neighbors. It was nice. It was cooperative. It was an effort to do exactly what Windy suggests, use a “lighter hand.”

A few days later, I received a call from the sports guy’s wife. As an aside, why is it that the spouse of people who have minor celebrity think that they become important by association?

In any event, the wife then harangued me with how awful my clients were, how wonderful and reasonable she was, and how she had no need for her attorney, to whom she paid “hundreds of thousand of dollars a year” she informed me (note: she had no clue how silly this sounds), since she was a genius and can handle her own fights. Rather than use the nice approach to smooth things over, Mrs. Sports Guy was now more deeply entrenched in her animosity than before. Worse yet, she adamantly refused to bring her attorney into the mix, which she saw as an affront to her reasonableness, intelligence and righteousness.

To Windy’s point, when a problem arises that is legal in nature, it is already ripe for litigation. While there are certainly occasions when someone will knowingly do something wrong to see if they can get away with it, the bulk of these problems are the product of people believing that they have a right to violate someone else’s right. Tell them that they’re wrong, and you’ve got a fight on your hands.

If they are as reasonable as they believe themselves to be, the lawyer letter alerts them to the problem and they can fix it. But this rarely happens. We all believe ourselves to be reasonable, no matter how unreasonable we in fact are. It’s human nature. The lawyer letter is a clean, clear notice that one side is asserting a belief that a significant problem exists and needs to be addressed. No, it isn’t the nicest way to handle things, but then nice is in the eye of the beholder.

Going back to the AP example, if Joe Smith from the AP called up Matt Drudge and told him that they would appreciate it if he could cut back on the quotes as overuse of their creative content, do you think Drudge would have said, “Gee, Joe. I didn’t realize. I am sooo sorry and will put a cap on it at 27 words.” Or would he have told Joe to get lost, it was fair use and posted about it the next day?

Of course the recipient of the lawyer letter would prefer a nice, friendly phone call instead. The phone call is much easier to ignore, or better yet, disagree with. And it gives the recipient the opportunity to take pre-emptive action to turn the situation upside down. The putative recipient gains an advantage at the expense of the person complaining, all because he tried to be nice.

Is this always the case? No. Nothing is always the case. But it happens regularly and ends up exacerbating the problem and placing the party asserting the right into a worse position than when he started.

As for my CEO and sports guy, war has been declared and the resolution that would have been mutually beneficial may yet come to pass, but only after plenty of blood will be spilled. In the alternative, the sports guy will lose the war big time, and end up believing that lawyer-hater John Stossel is a great legal philosopher.

That’s what came of trying to be nice. The problem with nice is that people are still people.

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6 comments on “Nice Letter, Lawyer Letter”

I think we’re talking past each other a bit. (After all, we’re both brilliant thinkers, so if we don’t agree, it must be because we’re not talking about the same thing.)

I don’t see AP’s behavior as a problem with AP’s lawyers, and if some people are bashing lawyers over it, that’s just silly.

Before your client got you involved, “he tried to do the neighborly thing and address it in a friendly manner” (and if it had worked, which it often does, you never would have heard about it).

That’s all I was suggesting AP should do, as a matter of good business practices. (And for all I know, they did.) Google, for example, has a number of very polite form letters that they send out when they discover their customers are violating their terms and conditions.

Large businesses often regard lawsuits and similar confrontations as part of doing business. I’ve worked for companies that were suing and being sued by their customers, even while continuing to negotiate deals for new business.

Small businesses and bloggers tend to take this sort of thing more personally.

Sure, it’s easier for the recipient to ignore a polite request, but when it works, it avoids ill feelings and keeps the door open for future cooperation.

[I]f Joe Smith from the AP called up Matt Drudge and told him that they would appreciate it if he could cut back on the quotes as overuse of their creative content, do you think Drudge would have said, “Gee, Joe. I didn’t realize. I am sooo sorry and will put a cap on it at 27 words.”

Well, I probably would. I wouldn’t want to piss them off, and I’d appreciate that they gave me the benefit of the doubt.

Matt Drudge…maybe not.

The points I was originally trying to make were pretty simple: (1) letters from lawyers can be scary, (2) AP knows that this, therefore (3) AP was trying to scare a bunch of people, and (4) that’s not very nice, (5) unless nicer methods have failed.

You seem an intelligent fellow, judging by the way you write, so it is troubling that you so completely fail to understand what it is about your profession that makes you, well, a terrorist.

As a middle-class person, it is guaranteed that I will lose if I am sued. I might just lose my savings; more likely, I will lose absolutely everything. I simply don’t have the thousands (often hundreds of thousands) of dollars that an effective legal defense requires for any matter whatsoever.

So a lawyer’s letter is extortionate — especially so if it (as is often the case) claims a right that would be denied in a trial. And lawyers are in the business of making demands, not of verifying that their demands are reasonable (that is, overwhelmingly likely to be affirmed by any judge that might hear the case — not just somewhat likely to be affirmed by whatever judge the plaintiff lawyer’s bought most recently).

Of course, you will reply that the responsibility of proving reasonableness belongs to the judge and jury, not the plaintiff — and you’re right, especially since judges (being members of the same gang, after all) never, ever, ever sanction lawyers for bringing unreasonable actions for even the smallest fraction of the costs imposed upon the respondent.

I was recently on a jury that heard a completely unreasonable action. We found for the defendant instantly. But the action cost around a quarter of a million dollars (and that’s not even counting the time [10 days] of nonproductive activity on the jury’s part) — and the judge had the temerity to claim that there were interesting legal issues involved and that the trial should have been heard!

Until some discipline is imposed upon the American legal system, lawyers will continue to be regarded as vultures, sharks, snakes, terrorists, and such. And this reputation could not be more richly deserved.

Well, that _would_ be the ideal case. Not sure I want the job, though, for all that I have little doubt that I or any other intelligent layman would be well qualified. Sounds like it would take an awful lot of my time….

But, no, I just want lawyers who threaten folks with meritless & nuisance actions to be punished severely enough to encourage others not to attempt it. ‘Loser pays’ is one good idea — but disbarment; jail terms; fines amounting to, say, 10 times the total costs occasioned by the action (costs to be interpreted quite liberally — both direct and indirect); and public whipping are alternatives I’d be willing to consider.

A meritless action is one which a judge throws out of court or one which a jury decides in favor of the defendant/respondent in under, say, fifteen minutes. A nuisance action is one in which the costs (again, liberally conceived) amount to more than double the amount at issue or the amount awarded, whichever is lower.

That should clear up the courts pretty quickly, while leaving them open for those with real needs.

Scott H. Greenfield

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